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1. Form 21 Pet Agreement. The form now includes a “Notice of Rights Under ORS 90.530” which summarizes management’s rights and restrictions. It is contained at the top of the first page so it can’t be missed. Generally, it informs residents about the landlord’s right to control pet activities, the maximum of $50 on fines, and liability insurance.

Several years ago it appears that the fair housing advocates “discouraged” limitations on breeds based upon fair housing issues. I have retained the restriction for obvious reasons[1] but limited it to the following which I believe will provided a good level of protection: If (a) your liability insurance carrier will not insure the Park against claims arising from injuries based upon a dog’s breed; and (b) you are unable to obtain financially reasonable substitute coverage elsewhere, you should retain the restriction. [2]

The Agreement further clarifies that service and assistance animals are not “pets” under the Park rules and regulations. Pets fees are not permitted. This is not to say they may be allowed to run free without safety and sanitation restrictions. Activity restrictions are still appropriate.  

The Agreement also addresses the “reasonable accommodation” provisions under the Fair Housing and Americans with Disability laws.[3]

2. Form 43 Notice to Vacate for Continuing Violation. The revised form addresses and clarifies that violations under the Pet Agreement may also constitute violations of Oregon’s Landlord-Tenant law.

3. Form 43A Notice to Vacate for Distinct Act. The revised form addresses and clarifies that violations under the Pet Agreement may also constitute violations of Oregon’s Landlord-Tenant law.

4. Form 48 Pet Violation Notice. The revised form clarifies that violation of the Pet Agreement can only result in a fine, but that Management reserves the right to alternatively issue a notice of termination under Oregon’s Landlord-Tenant law.

Members with questions or concerns on the changes should direct them to MHCO.

[1] All one needs to do is read the occasional newspaper articles on dog maulings to appreciate the risk. Putting this in perspective, which liability would you sooner face: (a) A multi-million-dollar damage claim after a child has been permanently disfigured from being mauled, or (b) a nasty letter from the Oregon Fair Housing Council?

[2] This is my opinion only. It is not “legal advice.” Landlords should rely upon their own legal counsel’s advice.

[3] See MHCO Q&A article: “Assistance” Animals – When Do They become A Ruse?”

Answer. The law in Oregon and elsewhere is still developing. However, what you are describing is already a violation of law. The laws currently in existence are significant, and should be kept in mind for those thinking about using drones, or those feeling harassed by them.

ORS 163.700 Amended March 29, 2016, by Chapter 72, Oregon Laws 2016, defines what we call a "drone" as follows:

"Unmanned aircraft system" means an unmanned flying machine, commonly known as a drone, and its associated elements, including communication links and the components that control the machine.

Of course there are several criminal prohibitions against weaponizing drones[1], causing reckless interference with aircraft, use by public bodies, etc.[2].

Criminal Laws. ORS 837.380 was amended in 2016 to provide: A person who owns or lawfully occupies real property in Oregon "may bring an action against any person or public body that operates an unmanned aircraft system that is flown over the property if the operator of the unmanned aircraft system has flown the unmanned aircraft system over the property on at least one previous occasion; and the person notified the owner or operator of the unmanned aircraft system that the person did not want the unmanned aircraft system flown over the property.

However, a person may not bring an action under this section if the drone was lawfully in the flight path for landing at an airport, airfield or runway; and is in the process of taking off or landing.

And there is a major commercial exception:

A person may not bring an action under this section if the unmanned aircraft system is operated for commercial purposes in compliance with authorization granted by the Federal Aviation Administration. This subsection does not preclude a person from bringing another civil action, including but not limited to an action for invasion of privacy or an action for invasion of personal privacy under ORS 30.865.

Under the statute, a prevailing plaintiff may recover treble damages for any injury to the person or the property by reason of a trespass by a drone, and may be awarded injunctive relief in the action. They may also recover attorney fees under ORS 20.080 if the amount pleaded in an action under this section is $10,000 or less.

Further, the Attorney General, on behalf of the State of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of a drone in Oregon airspace. The court may also award reasonable attorney fees to the Attorney General if they prevail in their claim.

Reasonable Expectation of Privacy. The laws protecting privacy have been applied to the use of drones. Accordingly, the 2016 law provides that a person commits the crime of "invasion of personal privacy" if they knowingly record others in an area where they have a "reasonable expectation of privacy". To put the "expectation of privacy" in context, I would suggest that a woman or man going to a public beach with a scantily clad bathing suit, should not expect the zone of privacy to apply to them. However, if they are in their enclosed backyard, they would.

The statute, in more prosaic terms, reads thusly:

Places and circumstances where the person has a reasonable expectation of "personal privacy" includes, but is not limited to, a bathroom, dressing room, locker room that includes an enclosed area for dressing or showering, tanning booth and any area where a person undresses in an enclosed space that is not open to public view.

Invasion of personal privacy in the second degree is a Class A misdemeanor.

Civil Law. On the civil side (as opposed to the criminal side) of the law, the common law tort concepts of negligence, assault, invasion of privacy (applying the "reasonable expectation" test), and nuisance, still apply, as does the law of trespass to real property. In such cases, the plaintiff would have a right to sue for damages. However, with only limited exceptions, prevailing attorney fees are not available.

Airspace. The Federal Aviation Administration ("FAA"), regulates airspace, including that which is above private land. So knowing the state, and federal laws, is critical before using drones. A quick check of the Internet shows that there already are drone detection and identification technologies. See, here. However, these are private technologies. There are already some in place by the government.

I suggest the place to start, is: (a) Make sure that you have rules in place that can be used in such cases; (b) ORS 90.740(4)(j), already protects "peaceful enjoyment" and if violated could give management the ability to curb the activity with a 30-day notice under ORS 90.630, and a non-curable 20-day notice for a repeat violation with 6-months of issuance of the first notice; (c) Check with your local authorities to see if they have any current capacity to identify drone usage from the ground, and if they can help; (d) Issue a community wide alert to all residents about the drone activity, and encourage reporting of all such issues, together with a warning that could result in the filing of a complaint to the local police department. Since there are technologies already in place (albeit on state and national enforcement levels), the alert should simply say that management is going to work with authorities to identify and prosecute violators. That may be sufficient to curb this activity.

Conclusion. As you can see, most of these prohibitions are found in one form or another, without the necessity of being addressed in your community rules. However, given their ubiquitous presence, especially by folks who are just hobbyists, I do suggest having some rules in place. Why? Because if someone was using a drone for their own prurient interests, e.g. flying over someone's fenced backyard, or for harassment purposes, it's far easier for management to take action against the perpetrator for a rules violation, than it is telling an offended or harassed resident to file a civil lawsuit or criminal complaint.

[1] Oregon law also identifies "critical infrastructure facilities" for which it is a violation of the law to fly a drone over them at an altitude of under 400 feet.

[2] All of which are addressed in the 2016 law.

Answer: Normally, I don't like to equivocate, but here, I'm going to have to do so. I suspect this answer might be quoted to the OHCS as a reason for declining to cooperate, so want to be careful how I answer. So rather than give a definitive "Yes" or "No" I'm going to give you some things to think about, before turning over documents to anyone other than a bona fide applicant who wants to rent a space. 1. Ask yourself: "How am I benefited by turning over my documents and forms?" From where I sit, I see no benefit. OHCS is not applying for tenancy. If they can explain to you what good comes to your park by turning over forms that you or MHCO paid to have developed, I might change my mind. 2. Ask yourself: "What can they do if I decline?" OHCS describes its services and functions as follows: "Oregon Housing and Community Services is Oregon's housing finance agency, providing financial and program support to create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income. The current agency was created in 1991, when the legislature merged the Oregon Housing Agency with State Community Services. The coordination between housing and services creates a continuum of programs that can assist and empower lower-income individuals and families in their efforts to become self-reliant. OHCS administers federal and state antipoverty, homeless and energy assistance, and community service programs. OHCS also assists in the financing of single-family homes, the new construction or rehabilitation of multifamily affordable housing developments, as well as grants and tax credits to promote affordable housing." These are all worthwhile and laudable goals. But I don't see anything on their website [here] suggesting that they are an enforcement or regulatory agency. So, it appears that a polite refusal to share the forms and other documents you use to operate your community will not be met by any sanction. If they can explain to you what they will do if your refuse to cooperate, and it appears they could visit upon you and your community a parade of unpleasant horribles, I might change my mind. 3. Ask yourself: "Well, if they are not a regulatory or enforcement agency, can there be any harm in cooperating?" In looking at their website, it is clear that part of their mission is to: '_create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income." Oregon law protects against discrimination in the sale, leasing or renting of housing, bases upon "source of income." [See, ORS 459A.421.] Today, there is a case pending before the United States Supreme Court, which will address whether discrimination arising from "disparate impact" is a violation of the Fair Housing laws. What is "disparate impact?" It means that you, as a landlord or manager, can be held to have discriminated against a member of a protected class - not because of any intent to do so - but merely because your rules, policies, or procedures in the application process, affect them more harshly than other people not in the class. It is clear from their website and stated mission, that fair housing is an important issue with the folks at OHCS. That's a good thing. But my mission is to protect - through education - MHCO's members with good risk management procedures. My experience has been that most alleged violations of fair housing laws are inadvertent, sometimes through the use of testers. That being the case, my concern in voluntarily turning over forms and documents used in managing your community, someone at OHCS might see a policy, rule, or screening criteria, that they interpret as a per se' violation of state, federal, county or city housing laws. [To put a fine point on this, go to the Fair Housing Council of Oregon's chart here, identifying the plethora of laws you are already expected to comply with, depending on the location of your community.] While I do not see that OHCS could do anything to you if they saw a potential violation, I certainly could see the documents, or information gleaned from them, being turned over to private or public entities that could do something, either through civil action or regulatory action. So, if OHCS can explain to you (a) why they need the information; (b) what they would do if they did see something they didn'tlike; and (c) what assurances they can give you that they will not turn the documents or information over to a third party for some sort of enforcement action. It they can provide you with such assurances, I might change my mind. As I have said above, OHCS's aspirational goals are laudable, and we should have no issue with them. If you want to assist in those goals, you should financially contribute to their cause. But you must also be prudent in your management decisions, balancing the risks versus the benefits, of cooperation. I see no benefits, but I do see great risks.

The case involved a mobile home park landlord who filed an eviction case because the tenant was allowing her adult son and his girlfriend to stay in the tenant's home without park approval. The park is a "55 or older" facility, and neither the son or girlfriend met the park's age requirements. More importantly, the son's presence in the park was accompanied by constant visitor traffic at all hours of the day.

The park issued a 30-day, for-cause notice to the tenant after confirming that the son and girlfriend were indeed staying there. At trial, the judge believed the evidence that the son was staying in the home, but took issue with the park's overnight guest policy. The judge found that the rental agreement policy allowing only 14 overnight visits per year was "unconscionable." The court stated that the limit was "unreasonable, obscure, and empowers Landlord excessively to Tenant's detriment." The judge went on to consider other factors in deciding the case, but an underlying theme was that tenants should be allowed more time for guest visits.

As a trial court decision, the case does not establish a legal precedent on overnight guest visits. However, while each case is different, landlords could limit their potential liability by expanding overnight visits above 14 days per year. Based on this particular judge's opinion, a 21-day per year limit might be a good safeguard. This adjustment could help negate the "unconscionable" argument by establishing a more relaxed guest policy.

If your park rules already allow more than 14 overnights per year for guests, it would be wise to rely on that policy to enforce guest visits. If you choose to amend your existing guest policy, mobile home park landlords can do so by issuing a rule change notice under ORS 90.610 (MHCO Form 60.) Non-park landlords can implement a new guest policy by having tenants sign off on a new guest policy rule. However, as usual, consult with an attorney before undertaking any rule changes with your tenants, and before filing an eviction action based on guest limitation violations.

MHCO FORM UPDATE: MHCO's rental agreement forms are in the process of being updated to allow 21 days per calendar year for guest visits (MHCO Forms 05A, 05B, 05C, and MHCO Form 80).

Answers to Questions Nos. 1 and 2. Under the Fair Housing Act ("the Act") landlords are required to make reasonable accommodations to the rented facilities and common areas, if so requested by a handicapped tenant or their legal occupant. This law applies to the use of assistance animals.

A "reasonable accommodation" is a reasonable change, exception or adjustment to a rule, policy, practice or service that will enable a handicapped person to have an equal opportunity to use and enjoy the rented facilities and common areas. There must be an identifiable relationship between the requested accommodation and the person's disability. Landlords are not required to make requested accommodations if doing so would impose an undue financial or administrative burden upon them or fundamentally alter the nature of the landlord's operations. In order to address the request, Landlords are entitled to obtain information that is necessary to evaluate it for a reasonable accommodation. With respect to a person, a "handicap" means: (a) one with a physical or mental impairment which substantially limits one or more major life activities; (b) one with a record of such impairment; or (c) one who is regarded as having such an impairment. Juvenile offenders, sex offenders, persons who illegally use controlled substances and those with a disability whose tenancy would constitute a direct threat to others, or result in substantial physical damage to the property of others, are generally not protected under the Act. If the landlord refuses a requested accommodation, the requester is encouraged to have a discussion with the landlord concerning an alternative accommodation. This is a summary only and not intended to constitute legal advice. For more information, landlords, tenants and legal occupants of tenants are encouraged to consult with their attorney or a Fair Housing expert if they have any questions regarding their rights and responsibilities.

Note: MHCO has Form No. 15 which permits residents to make reasonable accommodation requests.

I think my first step (which may have already occurred prior to the rule changes, is determine the extent of the problem for emergency vehicles along the narrow streets. Does a single car slow or restrict access to emergency vehicles? In short, how problematic is it for a single car to be parked along the street? Does it create any danger to the community, its drivers, or the emergency vehicles? Once you have that baseline, you will have a sense about the safety of making a reasonable accommodation by permitted on-street parking.

Secondly, if I were to permit anyone to park on the street (assuming the safety issue is properly vetted), I think I would insist that they have a handicapped parking permit. That way, anyone parking on the street without a permit would be easier to spot. (Although you should consider whether the permit is expired or being abused, or in the name of the car's owner.)

The handicapped caretaker is not your direct responsibility - she was hired by your resident. I do not believe convenience is the litmus test here - it's whether the rule prevents her from performing her tasks, and coming and going to the site. I think the biggest problem, and one you've not mentioned but certainly are thinking, is this could become a slippery slope. The more cars you permit to park on the street, the more others will try the same thing. At this point, I believe I'd take the position that if the parking area can accommodate two cars, then that's where they should park - even if it means shuffling them around, handicapped or not.

I do not believe handicapped caretaker has standing to request a reasonable accommodation, since he/she is not a tenant or occupant of the home. But I have not research this issue; you should verify this with your own attorney.

As for the non-handicapped caretaker, a little walk to and from the guest parking is not the end of the world. "Convenience" for a non-handicapped person is not a basis for a reasonable accommodation under the ADA, Fair Housing law, or common sense.

First up: Sexual harassment. Accusations against high-profile celebrities, politicians, and media moguls, fueled by the #MeToo movement, have raised awareness and pushed the issue into the national consciousness. Likewise, it’s become a top priority for officials in the Justice Department and HUD, which continue to come down hard on those accused of sexual harassment against prospects, applicants, and residents. Meanwhile, the victims of sexual harassment in rental housing continue to turn to the courts, either on their own or with the help of fair housing advocates, to seek redress for their injuries.  

Next up: Tenant-on-tenant harassment. Federal fair housing law bans not only sexual harassment, but also harassment based on race, national origin, or other protected characteristics. Most cases against community owners are based on the actions of managers or employees, but HUD regulations—and a recent court ruling—make it clear that communities face potential liability under fair housing law for tenant-on-tenant harassment under certain circumstances.

Last up: Criminal background checks. A few years ago, HUD released guidelines on how fair housing law applies to the use of criminal records by both conventional and assisted housing providers, and federal officials and fair housing advocates continue to press communities accused of discrimination based on criminal screening policies.

In this lesson, we’ll take each of these topics in turn, reviewing recent developments involving HUD, the Justice Department, and the courts, so you’ll understand how to handle these situations should they arise at your community. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

SEXUAL HARASSMENT

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status.  

Sexual harassment is a form of sex discrimination banned under the FHA. The basic rules haven’t changed much, but it’s becoming increasingly urgent to take all steps necessary to prevent sexual harassment at your community.

Federal officials with HUD and the Justice Department have made it a top priority to crack down on sexual harassment in housing. In 2017, the Justice Department launched an initiative to combat sexual harassment in housing, and last year, it announced the nationwide rollout of the initiative, including three major components: a new joint Task Force with HUD to combat sexual harassment in housing, an outreach toolkit to leverage the Department’s nationwide network of U.S. Attorney’s Offices, and a public awareness campaign, including the launch of a national Public Service Announcement.

Earlier this year, HUD launched a campaign and training initiative to help protect people from harassment by landlords, property managers, and maintenance workers in HUD-assisted housing. The “Call HUD: Because Sexual Harassment in Housing is Illegal” campaign aims to educate the public about what behaviors constitute sexual harassment and what to do and whom to contact if they experience it where they live. The initiative also offers sexual harassment training to employees of public housing authorities and other housing providers.

“Complaints we receive and cases we see tell us that there are some housing providers who unfortunately prey on vulnerable men and women,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “No one should have to tolerate harassment or unwanted sexual advances in order to keep a roof over their head, and HUD will continue to take appropriate action when discrimination of this type occurs.”

Since launching the initiative, the Justice Department has filed nine lawsuits alleging a pattern or practice of sexual harassment in housing. The Department has filed or settled 14 sexual harassment cases since January 2017 and has recovered over $2.2 million for victims of sexual harassment in housing.

Example: In April 2019, the Justice Department announced a $600,000 settlement with a North Carolina property owner for allegedly subjecting 17 female prospects and residents to sexual harassment over the course of more than 10 years in violation of the Fair Housing Act and the Equal Credit Opportunity Act.

According to the complaint, the owner ran a real estate business that involved not only operating residential rental properties, but also selling homes through “owner financing,” meaning that he extended credit to individuals to purchase homes that he owned. The complaint alleged that he subjected female prospects and residents of these homes to sexual harassment by making unwanted sexual advances and comments; groping or otherwise touching their bodies without consent; offering to reduce or eliminate down payments, rent, and loan obligations in exchange for sexual favors; and taking or threatening to take adverse action against residents when they refused or objected to his advances.

Under the settlement, the owner agreed to pay $550,000 in damages to former and prospective residents, as well as a $50,000 civil penalty. The settlement also permanently bars him from participating in the rental, sale, or financing of residential properties, and requires that he relinquish his ownership interest in all such properties.

“Abusing power and control over housing and credit by committing acts of sexual harassment is an abhorrent and intolerable violation of every woman’s right to equal housing and credit opportunities,” Assistant Attorney General Eric Dreiband said in a statement. “The Justice Department, through its Sexual Harassment in Housing Initiative, will continue to aggressively enforce federal anti-discrimination laws against property managers and owners who cause women to feel unsafe in their homes.”

Example: In April 2019, the Justice Department announced that it has added more alleged victims in a sexual harassment case against the owner and manager of rental properties in Tennessee. The lawsuit alleged that the landlord, who owned and managed a mobile home park and other rental properties, sexually harassed a number of female residents at his properties. Among other things, the landlord was accused of conditioning housing or housing benefits on female residents’ agreement to engage in sexual acts; subjecting at least one female resident to unwanted sexual touching; making unwelcome sexual comments and advances to female residents; and taking adverse housing-related actions against female residents when they refused his sexual advances. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.

“No woman should ever be subjected to sexual harassment or intimidation in her home,” Assistant Attorney General Eric Dreiband said in a statement. “The Fair Housing Act protects tenants from harassment and retaliation by their landlords, and the Justice Department will continue to vigorously enforce this law and seek relief for victims.”

“Property owners and landlords who use their position to harass residents or to attempt to trade sexual favors for rent violate the sanctity of an individual’s home, the place where they should feel the safest,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity. “HUD will continue to work with the Justice Department to take action against housing providers that violate the Fair Housing Act by engaging in this type of behavior.”

Example: In March 2019, the owners and former manager of more than 70 rental properties in West Virginia were held in civil contempt for failing to pay $600,000 still owing under a 2017 settlement with the Justice Department in a sexual harassment case. 

The initial complaint alleged that a married couple and related entities owned the properties and that the husband, while serving as the manager, subjected female prospects and residents to egregious sexual harassment and retaliation in violation of fair housing law. In 2015, the husband pleaded guilty to sexual abuse and other charges and was incarcerated for two years for those offenses. The wife has since died.

According to the complaint, the husband sexually harassed multiple female prospects and residents from at least 2006 until he was incarcerated. Among other things, the husband was accused of engaging in unwanted sexual touching and groping; conditioning or offering tangible housing benefits in exchange for performance of sex acts; touching himself in a sexual manner and exposing himself in the presence of female residents; making unwanted and unwelcome sexual comments and verbal sexual advances; entering the apartments of female residents without permission or notice to sexually harass them; and taking or threatening to take adverse action against female residents who refused or objected to his sexual advances.

The wife was accused of failing to take appropriate steps to remedy the discrimination after receiving tenant complaints about sexual harassment. To the contrary, she allegedly took adverse housing actions, or threatened to take such actions, in retaliation for discrimination complaints.

To resolve the case, the defendants agreed to a settlement, which required them to deposit $500,000 into a compensation fund for potential victims and pay $100,000 in civil penalties to the government. The defendants made the first $100,000 payment but failed to deposit the remaining $400,000 into the compensation fund or pay the $100,000 civil penalty as agreed a year later.

The Justice Department took the case back to court, where the judge granted its request to hold the defendants in civil contempt for failing to pay the balance of the funds owed under the 2017 settlement agreement.

The defendants didn’t deny that they owed the money and failed to submit financial documents to prove their supposed inability to pay. They conceded that they owned more than $700,000 worth of property but said that they couldn’t obtain a loan secured by the properties. They didn’t want to sell the properties because the husband wanted to transfer his interest in the properties to his children and a forced sale of the properties at below market value “would only punish innocent persons not party” to the settlement agreement.

Rejecting those claims, the court said that obtaining fair market value for the sale of their real estate wasn’t required for the defendants to satisfy their obligations under the settlement agreement. The “innocent persons” at issue in this case were the defendants’ former female residents and prospects who have yet to be compensated for the harms they suffered as a result of the husband’s conduct [U.S. v. Walden, March 2019].

Coach’s Tip: Adopt a zero-tolerance policy against sexual harassment at your community. It’s important to have a clear, written policy that sexual harassment of any kind won’t be tolerated at your community and that violations will bring prompt disciplinary action, up to and including termination. Require all employees—from leasing agents to maintenance workers, whether full or part time—to receive fair housing training, including your sexual harassment policy.

TIME OUT!

Understanding Harassment Regulations

In September 2016, HUD adopted final regulations on fair housing protections for victims of harassment based on race, color, religion, national origin, sex, familial status, or disability. The new regulations cover “quid pro quo” harassment and hostile environment harassment in both private and publicly assisted housing.

Sexual harassment in housing threatens a resident’s safety and privacy in her own home, according to HUD. In its experience enforcing the FHA, HUD said that low-income women—often racial and ethnic minorities and persons with disabilities—may be particularly vulnerable to sexual harassment in housing. HUD’s final rule on harassment in housing includes formal uniform standards for evaluating claims of hostile environment and quid pro quo harassment in the housing context:

Quid pro quo (“this for that”) harassment involves subjecting a person to an unwelcome request or demand and making submission to the request or demand a condition related to the person’s housing.

Hostile environment harassment involves subjecting a person to unwelcome conduct that’s so severe or pervasive that it interferes with or deprives the person of the right to use and enjoy the housing.

The new rules also clarify when housing providers and other covered entities or individuals may be held directly or vicariously liable under the Fair Housing Act for illegal harassment or other discriminatory housing practices.

TENANT-ON-TENANT HARASSMENT

HUD’s regulations make it clear that fair housing law bans not only sexual harassment, but also harassment based on any protected class, including race, national origin, disability, and family status.

The regulations also clarify when housing providers and other covered entities and individuals may be held liable for illegal harassment and other discriminatory housing practices. Under HUD regulations, community owners may be liable under fair housing law for failing to take prompt action to correct and end discriminatory conduct, including harassment, by their employees or agents, where they knew or should have known about it.

You don’t have only your employees or other staff members to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. Based on the HUD regulations, you could be liable under fair housing law for failing to take prompt action to correct and end a discriminatory housing practice by a third party, where you knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends on the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In March 2019, a court ruled that a New York community could be liable under the FHA for an alleged campaign of racial harassment against an African-American resident by his neighbor.

After living at the community for several months, the resident claimed that his next-door neighbor began a relentless campaign of racial harassment, abuse, and threats directed toward him. From the start of the harassment, the resident said he feared for his personal safety, so he contacted the police and the site’s management to complain.

According to the resident, his first call in March 2012 prompted police officers in the hate crimes unit to visit the site, interview witnesses, and warn the neighbor to stop threatening the resident with racial epithets. That day the resident said he filed a police report, and a police officer told the management about the neighbor’s conduct. Allegedly, the management did nothing.

In May 2012, the resident said he called the police again and filed another police report. This time, the resident said he provided written notice to management about his neighbor’s racial harassment and racial slurs directed toward him between March and May 2012. It also provided contact information for the police officers responsible for investigating the neighbor. Allegedly, the management still took no action.

According to the complaint, the neighbor’s conduct persisted to the point that the police arrested him for aggravated harassment. In August 2012, the resident said he sent a second letter informing management of the continued racial slurs directed to him and the fact that the neighbor had recently been arrested for harassment.

In September, the resident said he contacted the police and sent the management group a third letter complaining about his neighbor’s continued harassment. After receiving the letter, according to the complaint, the management group advised the site manager “not to get involved,” and the management group declined to respond or follow up. To the contrary, the resident claimed that the neighbor was allowed to stay in his unit until his lease expired and he moved out in January 2013. A few months later, the neighbor pleaded guilty to harassment and a court entered an order of protection prohibiting him from contacting the resident.

The resident sued, accusing the owner and manager of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

On appeal, the court reversed, ruling that the resident could pursue his claims against the community for failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment.

The court cited HUD’s regulations, which specifically state that an owner may be liable under the FHA for “[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party” tenant where the owner “knew or should have known of the discriminatory conduct and had the power to correct it.”

The court acknowledged that the owner’s ability to control a given resident is relevant to determining the owner’s liability. In some cases, an owner may not have enough control over its residents to be held liable for failing to intervene. According to HUD, the owner can be held liable only in circumstances where the landlord had the power to take corrective action yet failed to do so. That would mean that the landlord escapes liability under the FHA if the appropriate corrective action is “beyond the scope of its power to act.”

In this case, the resident’s complaint adequately alleged that the owner and manager engaged in intentional racial discrimination by tolerating and/or facilitating a hostile environment, even though they had authority to “counsel, discipline, or evict [the neighbor] due to his continued harassment of [the resident],” and also had “intervened against other tenants at [the site] regarding non-race-related violations of their leases or of the law.”

The complaint alleged that the owner and manager had actual knowledge of the neighbor’s criminal racial harassment of the resident but, because it involved race, intentionally allowed it to continue even though they had the power to end it. It may turn out that the owner tried but failed to respond. Or it may be that the owner was powerless to evict or otherwise deal with the neighbor. But the resident was entitled further proceedings to determine the level of control the owner and management group actually exercised over tenants and whether they had the power to act to stop the neighbor’s abuse [Francis v. King Park Manor, Inc., March 2019].

Coach’s Tip: Take all necessary steps to prevent—and address—discrimination or harassment at the community. Aside from ensuring that your policies and procedures conform to fair housing law, you can reduce the likelihood of a complaint by properly training and supervising all employees—not only managers and leasing staff, but also maintenance workers and anyone else who interacts with the public. And be particularly careful when hiring and supervising outside contractors or anyone else who could be considered your agent.

Promptly address any complaints of discrimination or harassment by conducting an investigation and, if warranted, taking adequate steps to stop the offending conduct. Get legal advice if necessary, and be sure to document what you’ve done so you’ll be prepared to defend yourself in case a claim is filed against you.

Just don’t try to solve the problem by doing anything that looks like you’re punishing the victim. According to HUD regulations, taking prompt action to correct and end the discriminatory conduct may not include any action that penalizes or harms the aggrieved person, such as evicting a resident who complains to you about discrimination or harassment by an employee, agent, or another resident.

CRIMINAL BACKGROUND CHECKS

Have you reviewed your criminal screening policies lately? If it’s been a while since you last reviewed your policy, it’s important to ensure that it doesn’t run afoul of HUD’s 2016 guidelines explaining how federal fair housing law applies to the use of criminal records in both conventional and assisted housing communities.

The HUD guidance doesn’t prevent communities from screening applicants based on their criminal history, but communities could face liability under fair housing law if its criminal history policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants. It’s important to review the guidance in detail, but there are some steps you should take ASAP to reduce the risk of fair housing trouble. If, for example, your policy still considers arrest records in criminal background screenings, you should make some changes immediately. HUD’s new guidelines flatly say that excluding someone based on arrest records is likely to have a discriminatory effect based on race and national origin.

Check whether your policy still lists “all felonies” or long-ago felonies as reasons not to rent to someone. If so, you may be headed for trouble because the guidelines call into question the lawfulness of excluding people based on criminal convictions—without consideration of what the conviction was for or how long ago it occurred.

Example: In January 2019, a court refused to dismiss a lawsuit filed by an applicant who claimed that a community discriminated against him on the basis of race when it denied his rental application based on its policy to automatically exclude anyone with a felony conviction from renting a unit at the community.

The applicant was an African-American man with a felony conviction. At the time he submitted his application, the applicant met the income eligibility requirement for the unit he applied for, had no prior evictions, and didn’t have a bad credit history. The community allegedly notified him that his application had been denied due to a felony on his criminal record. The applicant said he called twice to request an appeal, but no one returned his calls.

The applicant sued, accusing the community of discrimination because its criminal background policy had a disparate impact based on race. According to the complaint, the applicant alleged that the community had an outwardly neutral policy of automatically excluding anyone with a felony conviction, but the policy had a disparate impact based on race because statistics showed that blanket bans based on criminal history resulted in the denial of housing opportunities at a disproportionate rate for African-Americans and minorities.

The court rejected the community’s request to dismiss the case. The applicant could pursue his disparate impact claim because the statistical racial disparity he relied on was directly related to its alleged policy of excluding a person with a felony conviction from renting at the community [Jackson v. Tryon Park Apartments, Inc., January 2019].

Check whether your policy allows applicants to explain the background of a felony conviction. The HUD guidelines say that communities should offer applicants with criminal records an opportunity to explain the circumstances and what’s happened since then—something akin to the “interactive” process for disability-related reasonable accommodation requests.

Example: In April 2019, a court dismissed claims by an applicant who accused a public housing authority of race discrimination by denying him housing because of his criminal record.

In his complaint, the applicant alleged that he applied to be placed on the public housing waiting list, requesting placement in the first available housing with wheelchair accessibility. At the time he applied in 2016, the PHA required a credit check and criminal background check for all applicants. The policy stated that certain factors could lead to a mandatory denial, including a homicide-related offense. The policy provided applicants with the opportunity to dispute the accuracy and relevancy of the information through an informal hearing.

After an interview, the PHA denied his application for two reasons: a police record—a felony guilty plea to involuntary manslaughter in 1997—and a landlord/tenant judgment against him for $871.

At his hearing, the applicant clarified that his conviction was for a misdemeanor, not a felony, and provided an explanation for the landlord/tenant dispute: He had missed payments only because he had avoided the rental office after being sexually harassed by an employee there.

The PHA reversed its decision regarding his conviction and gave him 30 days to provide proof that he had entered a repayment plan to resolve the landlord/tenant dispute.

The applicant didn’t meet the 30-day deadline, so the PHA upheld the denial of his application. A week later, he sent in the rental payment agreement and the PHA granted his application. Eventually, he signed a lease for a unit at a PHA property.

The applicant sued, accusing the PHA of race discrimination in violation of fair housing law and his due process rights by denying his application because of his criminal record.

Siding with the PHA, the court dismissed the case. The applicant claimed that the PHA discriminated against him and violated his due process rights by refusing to house him because of his criminal record, but the exact opposite was true: Although the PHA initially found him ineligible for housing because of his homicide-related offense, the PHA reversed its decision after a hearing revealed that the offense was only a misdemeanor. Nothing in the record showed that he was the victim of housing discrimination or that he was denied due process.

“There is no evidence that the PHA’s criminal history policy violates state or federal fair housing laws or the Constitution. [The applicant’s] case presents an example of due process at work. Although the PHA may have erred in its initial decision to deny [his] application for public housing, the PHA corrected that decision after giving [the applicant] a meaningful opportunity to demonstrate the PHA’s error” [Hall v. Philadelphia Housing Authority, April 2019].

Coach’s Tip: Whatever your policy on criminal background checks, be sure that you apply it consistently—without regard to race, color, national origin, or other protected characteristics. Applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, is a sure way to trigger a fair housing complaint.

Example: In October 2018, the Justice Department sued a Tennessee community and its property management company for allegedly denying the application of an African-American applicant because of his criminal record, despite approving the rental applications of two white people with disqualifying felony convictions.

The case dates back to 2012 involving a man living with his ex-wife at the community, who completed a lease application in which he disclosed a felony conviction for writing a bad check. According to the complaint, the community’s resident selection guidelines provided for rejection of applicants who had a felony conviction within the last 10 years as well as any conviction for the sale, distribution, or manufacture of controlled substances or certain sexual offenses.

According to the applicant, the community’s resident manager denied his lease application because of the policy not to rent to felons. Allegedly, she also told him that he was no longer allowed on the property because he was a felon.

Around the same time, according to the complaint, at least two other applicants who were not African American and who had criminal records in violation of the resident selection guidelines were approved for housing at the community. Allegedly, both disclosed their convictions on their applications: The first had a conviction for felony sexual battery and was on the national sex offender database; the second pleaded guilty to felony drug charges and was serving probation [U.S. v. Dyersburg Apartments, LTD., October 2018].

TIME OUT!

Court: Tenant-Screening Services Must Comply with Fair Housing Act

In a landmark civil rights decision, a court ruled that consumer reporting agencies must comply with the FHA when conducting tenant-screening services for landlords.

Fair housing advocates filed the lawsuit against a consumer reporting agency after its tenant screening product allegedly disqualified a disabled Latino man with no criminal convictions from moving in with his mother. The complaint alleged that the company’s screening product provided landlords with an “accept or decline” decision based on an assessment of an applicant’s criminal record. The lawsuit claimed that the screening company’s product discriminates based on race, national origin, and disability in violation of the Fair Housing Act.

The court rejected the company’s claim that the case should be dismissed because fair housing laws didn’t reach its services. According to the court, the company “held itself out as a company with the knowledge and ingenuity to screen housing applicants by interpreting criminal records and specifically advertised its ability to improve ‘Fair Housing compliance.’” Because consumer reporting companies functionally make rental admission decisions for landlords that use their services, they must make those decisions in accordance with fair housing requirements [Fair Housing Center et al. v. CoreLogic Rental Property Solutions, LLC, March 2019].

"Fair Housing Coach" articles are a benefit of MHCO membership.  Sharing, duplication is prohibited.

Answer. I suspect you allowed the caregiver in without putting her on an Occupancy Agreement (MHCO Form No. 25 ). See, ORS 90.275. It gives you great latitude to control an occupant's activities, since violation can result in eviction action directly against the caregiver.

The following is a summary of my conversation with the Fair Housing Council of Oregon on the issue of whether landlords can put caregivers on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement, or not putting them on any written agreement (which leaves in doubt their legal status if the Landlord wants them removed from the Community).

• If the caregiver doesn'tqualify based on the background check[1] then you don't have to accept them into the Community;
• If they violate rules of the community when they are already in the Community and under the agreement, you can require they leave;
• You can pre-qualify the person as a care provider, i.e. required a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can't provide that proof, then you don't have to allow them into the Community as a care provider (although I can't imagine it would be very hard to obtain such proof);
• According to the Fair Housing Counsel, you are to give the tenant a choice (assuming the person qualifies under the background check), i.e. they can put the person on an Occupancy Agreement or go onto a Rental Agreement. You can't automatically say, "OK, you must go on an Occupancy Agreement." [Caveat: I do not agree with this position, and do not endorse it. The consequences of putting a caregiver on a rental agreement is that you have an much stricter protocol when they violate the rules or laws - e.g. written notice and opportunity to cure, etc. I believe that caregivers and others who are there on a temporary arrangement should remain on the Temporary Occupancy Agreement. This is exactly what the agreement was designed to do. Both Rental Agreements and Temporary Occupancy Agreements only permit termination "for cause" so this is not a situation the landlord can abuse without consequences.]

If you did not put the caregiver on a Temporary Occupancy Agreement means that the caregiver is merely a "guest" of the tenant, and if the guest violates the rules, you have to send a 30-day notice to the tenant; if the rules continue to be violation, your only option is to terminate the tenant's tenancy, and the caregiver is out too. But, this is not what you want to do.

I suggest that you consider having the caregiver sign a Temporary Occupancy Agreement. Of course, she could refuse, but it's worth a try. I have been successful doing so in the past.

If that does not work, you may consider giving the proper termination notice[2] and then filing for eviction against the tenant and "all others", i.e. the caregiver. Then when the matter gets to court, inform the court that you don't want to evict the tenant, only the caregiver. (I have had a judge agree to do so in the past.) You could then either ask the judge to evict the caregiver, or through the mediation that occurs in these proceedings, provide that the caregiver can stay, but only if she signs the Temporary Occupancy Agreement.

By the way, if the tenant has dementia, something needs to be done through the local social service agency, since it does not sound as if he can take care of himself along. Good luck!

[1] Remember, you cannot require financial capacity if they are to be an occupant, but you can if they are to be a tenant.

[2] I strongly recommend have your attorney review the 30-day notice you previously gave before sending out a repeat violation notice. This situation is too important to get into court and have the case thrown out for a defective notice.

Answer: Wow! Too bad Jerry Springer no longer has a show. They could just fight it out in front of a live audience.

Surprisingly, there is a fairly straightforward answer. Under ORS 90.675(19) death triggers the abandonment statute. But before I get into that, understand that under the abandonment law, management has a duty of safekeeping for the home and the personal property. This means that management may - and in this case must - secure the home and its contents. So immediately upon issuing the 45-day letter, the locks can be changed, and access forbidden except by appointment, and by consensus. One sister should not be allowed to go in without the others being present. From that point forward, the statute doesn'tgive any guidance, so the rule of reason applies.

Here are my thoughts:

• Require that they first take an inventory of the contents; if they cannot agree upon a methodology, tell them to hire someone to do it. Until that happens, individual access should not be permitted.
• Once an inventory is taken, the executor would have responsibility to the court (if there is a probate) to provide it to the court.
• Without know when the will says, it's hard to know whether there are special bequests, etc., but this is why the sisters should not be allowed access to pick and choose what to remove.
• Your manager should not become a referee or a punching bag.
• In addition to issuing the 45-day abandonment letter, the estate is responsible to enter into a Storage Agreement that requires it to pay the monthly storage fees (i.e. equal to the monthly rent). This should get their attention, since the longer they fight, the longer it will be before the estate is settled and the home sold. Under the abandonment law, the landlord has a right to all of the accrued storage fees from the home sale proceeds.
• My thinking about the sisters who have received the No Trespassing notice, my suggestion is to tell them it will remain in force, unless they commit to following management's protocols for access.
• ORS0.675(21)(g) and (h) provide:

"If the [personal] representative or [designated] person violates the storage agreement, the landlord may terminate the agreement by giving at least 30 days' written notice to the representative or person stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative or person."

"Upon the failure of a representative or person to enter into a storage agreement as provided by this subsection or upon termination of an agreement, unless the parties otherwise agree or the representative or person has sold or removed the property, the landlord may sell or dispose of the property pursuant to this section without further notice to the representative or person."

Conclusion.Make sure that that no effort is made to sell the home without first having the purchaser qualified by Management. If the sisters cannot rationally resolve the issue, management has the right to simply proceed with the abandonment sale, and the law will determine how the proceeds are to be distributed.

Answer:  This is a new one.  The Oregon landlord tenant law does not expressly address this specific issue. The closest it comes are the following laws:

1. ORS 90.755 Right to speak on political issues; limitations; placement of political signs:

(1) No provision in any bylaw, rental agreement, regulation or rule may infringe upon the right of a person who rents a space for a manufactured dwelling or floating home to invite public officers, candidates for public office or officers or representatives of a tenant organization to appear and speak upon matters of public interest in the common areas or recreational areas of the facilityat reasonable times and in a reasonable manner in an open public meeting. The landlord of a facility, however, may enforce reasonable rules and regulations relating to the time, place and scheduling of the speakers that will protect the interests of the majority of the homeowners.

            (2) The landlord shall allow the tenant to place political signson or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. (Emphasis added.) 

2. 90.750 Right to assemble or canvass in facility; limitations. No provision contained in any bylaw, rental agreement, regulation or rule pertaining to a facility shall:

            (1) Infringe upon the right of persons who rent spaces in a facility to peaceably assemble in an open public meeting for any lawful purpose, at reasonable times and in a reasonable manner, in the common areas or recreational areas of the facility. Reasonable times shall include daily the hours between 8 a.m. and 10 p.m.

            (2) Infringe upon the right of persons who rent spaces in a facility to communicate or assemble among themselves, at reasonable times and in a reasonable manner, for the purpose of discussing any matter,including but not limited to any matter relating to the facility or manufactured dwelling or floating home living. The discussions may be held in the common areas or recreational areas of the facility, including halls or centers, or any resident’s dwelling unit or floating home. The landlord of a facility, however, may enforce reasonable rules and regulations including but not limited to place, scheduling, occupancy densities and utilities.

            (3) Prohibit any person who rents a space for a manufactured dwelling or floating home from canvassing other persons in the same facility for purposes described in this section. As used in this subsection, “canvassing” includes door-to-door contact, an oral or written request, the distribution, the circulation, the posting or the publication of a notice or newsletter or a general announcement or any other matter relevant to the membership of a tenants’ association.

            (4) This section is not intended to require a landlord to permit any person to solicit money, except that a tenants’ association member, whether or not a tenant of the facility, may personally collect delinquent dues owed by an existing member of a tenants’ association.

            (5) This section is not intended to require a landlord to permit any person to disregard a tenant’s request not to be canvassed. (Emphasis added.)

3.  90.740 Tenant obligations. A tenant shall:

            (3) Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant’s behavior as a tenant.

            (4) Except as provided by the rental agreement:

            (a) Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

            (i) Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors. (Emphasis added.)

So, you see, this simply isn’t addressed in the landlord-tenant law.  Nor should it be.  Clearly, the resident leaving the religious material in the clubhouse could, if he or she wanted, go door to door proselytizing, unless and until others complained.  If the materials are left anonymously, without more than a single resident being offended, I’m not sure what the landlord could or should do.   Remove and destroy the materials?  

If the landlord knows who is doing this, perhaps a personal discussion with them might be in order. But telling them to “stop” because a single person is offended seems unnecessary.  If there is a place in the clubhouse for storage of reading materials, perhaps removing the literature to that location would work.  Certainly, no rule change prohibiting placement of materials in the clubhouse (just because they are religious) is unnecessary.  Management cannot be responsible for controlling the placement of written materials in the clubhouse unless it is offensive, inappropriate for minors and guests.[i] This is what free speech is all about.  My view would be the same regardless of the denomination of the literature.  If I’m incorrect, I’m sure I will hear about it.

Question 2

The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community.  Who is responsible to provide this information to the temporary occupant and when should it be given?  

Answer 2

I understand that the temporary occupant law does not specifically address this point.  But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship.  That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules.  Then there is no question about whether they got them.

Question 3

The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does nothave a right to cure the violation.  The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this).  If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies).  However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court?  If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination.  

Answer 3

The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement.  That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.”  If they don’t, then the landlord can issue a for cause termination under 90.630(for MHP tenancies) to the tenant – notthe temporary occupant.  That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required.  The opportunity to cure is for the tenant to get the temporary occupant to vacate.    If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated.  In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.”  ORS 90.403then permits you to give a 24-hour non-curable termination notice to the “squatter”  and evict, if necessary, through the normal FED process.